'Reform' bills fall flat while pro-consumer measures soar.

After a deluge of tort "reform" measures in the late 1990s and the first half of this decade, the past two years have seen a marked decrease in the number of bills backed by the U.S. Chamber of Commerce and the American Tort Reform Association (ATRA) that secured passage at the state level. Despite these groups' claims that sweeping tort "reform" measures continue to sail through state legislatures, by all appearances, organizations like ATRA have become increasingly ineffective at pushing through their agenda.

ATRA prints a biannual publication, the Tort Reform Record, that contains a list of all tort "reform" measures passed in the states since 1986, as well as a summary of the 10 key issues on which they focused, including joint and several liability reform, punitive damages reform, products liability reform, class action reform, and attorney retention (Sunshine Act) reform, which discourages the use of contingent fee relationships between attorneys and the government.

The most recent Tort Reform Record, released July 1, indicated a marked decline in the number of ATRA-backed bills that were successful at the state level. In 2002, when tort "reformers" hit their stride, ATRA reported that 56 of its state bills had passed. The momentum carried through 2004, with 50 reported victories.

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But in 2007, the figure plummeted by more than haft: Only 18 bills passed. By last July, when all but a few state legislatures had adjourned for 2008, ATRA reported that only one of the bills it backed had passed.

In contrast, the plaintiff bar and other consumer advocates have successfully supported an increasing number of proactive consumer protection bills in recent years. Even the American Tort Reform Foundation (ATRF) has acknowledged consumer-rights advocates' shift from a defensive to an offensive stance in the states. (See Am. Tort Reform Found., Defrocking Tort Deform 15 (2008).)

Numerous pro-consumer bills were passed in 2007 and 2008, addressing issues as diverse as automobile liability insurance, bad-faith insurance practices, wrongful death caps, workers' compensation, products liability, and more. In many states, ATRA-supported bills were soundly defeated. For example, bills attacking the use of private attorneys by state attorneys general failed in Florida, Ohio, West Virginia, and Wisconsin over the last two years.

Building on momentum at the federal level, state trial lawyer associations and consumer groups are well positioned to continue advancing strong, pro-consumer civil justice measures in the states over the next few years.

For information on how state trial lawyer associations can take a proactive legislative stance, contact AAJ State Affairs at [e-mail] or [phone], ext. 228.